San Francisco Frontiers - January 23, 2002

Communications Decency Act A Lingering Coup de Grace?

By Tim Kingston

January 23, 2002

You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting "obscene" materials on the Internet as defined by the Supreme Court, remains standing.

That is something that the National Coalition for Sexual Freedom (NCSF) and Barbara Nitke, a New York artist whose sexually charged photographs could be subject to the law, intend to change. Judy Guerin, the group's executive director, hopes this is a final coup de grace to that law. On Jan. 29, a federal court in New York City will be hearing preliminary arguments in a case that is likely to wind up before the U.S. Supreme Court--due to the fact that appellants have an automatic and expedited right of appeal. "Obscenity is tied to community standards," asserted Guerin. "We feel that community standards are not defined and what has been previously thought of as community standards in a geographic area is not applicable to the Internet. It could mean that the most restrictive community standards in the country could apply."

The problem that Guerin cites was equally problematic with the original attempt to outlaw "indecency" on the Internet. Essentially, Guerin and other civil-liberties proponents worry that the federal government could go "venue shopping" until they found a community with standards restrictive enough to guarantee a conviction. As she pointed out, Utah has a "porn czarina" who thinks that the women's magazines Redbook and Vogue are "obscene." Given that definition, it would not be outrageous to say that every queer publication on the Internet is at risk.

Guerin, whose group is a coalition of 22 different organizations representing some 10,000 members, added, "This is an important issue for all, from [those concerned about] sex education, to anyone who talks about any kind of sexual issue on the Internet. It is certainly something the LGBT movement should be very concerned about, become very proactive about and [be] aggressive against [U.S. Attorney General John] Ashcroft."

"We feel [the law] has a chilling effect because people do not know what is and what is not allowed on the Internet with relation to sexually frank material," said Guerin. "The good news is that we are proactively trying to overturn it before the administration tries to score political points by enforcing it."

The NCSF director pointed out that "Ashcroft has been meeting with Concerned Women for America, the Religious Right and the Christian Coalition, and has talked about prosecuting obscenity cases. If we don't do this proactively, they will prosecute a horrible case in a venue that is not favorable and it will be decided on their terms."

Asked if perhaps it might not be better to "let sleeping dogs lie" in this case, since the law has not been enforced or mentioned in years, Guerin responded forcefully. First, she cited the current repressive and frighteningly patriotic climate: "During these times our most basic American values get tested and free speech is a value that we are fighting for...our rights really hinge on freedom of speech." Laughing, she added, "The second part of that is that we don't think the [U.S.] Supreme Court is going to be better or any more liberal, any time soon."

SF Frontiers was unable to contact Department of Justice officials for comment. The staffer concerned was prioritizing the Marin Taliban press conference over the first amendment.